Bombay High Court
The Oriental Insurance Company Ltd vs // on 12 August, 2010
Author: A. P. Bhangale
Bench: A. P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.1399 OF 2009
WITH
FIRST APPEAL NO.1441 OF 2009
WITH
FIRST APPEAL NO.446 OF 2010
1) FIRST APPEAL NO.1399 OF 2009 :
The Oriental Insurance Company Ltd.
Branch Office at Yavatmal,
through Chief Regional Manager,
"S.K.TOWERS", Nelson Square,
Chhindawara Road, Nagpur. ........ APPELLANT.
// VERSUS //
1. Pandit Nagorao Ade,
Aged about 43 yrs., Occ.Agrilst.,
At & Post. Shendna,
Tah : Manora, Distt. Washim,
Now r/o. Itawa Ward : Pusad,
Tqh. Pusad, Distt. Yavatmal.
2. Amol s/o. Prakash Bobde,
Aged 25 yrs., Occ. Driver, r/o.
Shelodi, Tq. Darwha, Distt. Yavatmsal.
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3. Prakash s/o. Champatrao Bobade,
Aged 47 yrs., Occ. Business, r/o.
Mokh, Tq.Digras, Distt. Yavatmal. ....... RESPONDENTS
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Mr. A. R. Godbole, Adv. for the Appellant.
Mr. S. C. Bhalerao, Adv. for the Respondent nos. 1 to 3.
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2) FIRST APPEAL NO.1441 OF 2009 :
The Oriental Insurance Company Ltd.
Branch Office at Yavatmal,
through Chief Regional Manager,
"S.K.TOWERS", Nelson Square,
Chhindawara Road, Nagpur. ........ APPELLANT.
// VERSUS //
1. Dhurpatibai Baburao Chavan,
Aged 60 yrs.
2. Lakhan Vijay Chavan,
Aged about 5 yrs., Minor G.A.L.
by mother/applicant no.1
Dhurpatibai Chavan.
Both r/o. Shendona, Tq. Manora,
Distt. Washim.
3. Amol s/o. Prakah Bobde,
Aged Adult, Driver, r/o. Shelodi,
Tq. Darwha, Distt. Yavatmal.
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4. Prakash s/o. Champatrao Bobade,
Aged Adult, Occ. Business, r/o. Mokh,
Tq. Digras, Distt. Yavatmal.
5. Vasant Nokaji Gusar,
Aged about Adult., r/o. Plot No.50,
Jawaharnagar, Manewada Road,
Nagpur. ....... RESPONDENTS
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Mr. A. R. Godbole, Adv. for the Appellant.
Mr.S.S.Vyawahare, Adv. for respondent nos. 1 and 2.
Mr. S. C. Bhalerao, Adv. for the Respondent nos. 1 to 3.
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3)
FIRST APPEAL NO. 446 OF 2010 :
The Oriental Insurance Company Ltd.
Branch Office at Yavatmal,
through Chief Regional Manager,
"S.K.TOWERS", Nelson Square,
Chhindawara Road, Nagpur. ........ APPELLANT.
// VERSUS //
1. Smt. Manda wd/o. Vijay Chavan,
Aged 33 yrs., aged about 33 yrs.,
Occ. Nil.
2. Annapurna d/o. Vijay Chavan,
Aged about 7 yrs., Occ. Nil,
Being Minor through her Mother/
Respondent No.1.
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Both r/o. Shendona, Tq. Manora,
Distt. Washim.
3. Amol s/o. Prakah Bobde,
Aged Adult, Driver, r/o. Shelodi,
Tq. Darwha, Distt. Yavatmal.
4. Prakash s/o. Champatrao Bobade,
Aged Adult, Occ. Business, r/o. Mokh,
Tq. Digras, Distt. Yavatmal.
5. Vasant Nokaji Gusar,
Aged about Adult., r/o. Plot No.50,
Jawaharnagar, Manewada Road,
Nagpur. ....... RESPONDENTS
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Mr. A. R. Godbole, Adv. for the Appellant.
Mr.S.D.Chopde, Adv. for Respondent nos. 1 and 2.
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CORAM : A. P. Bhangale, J.
DATE : 12.08.2010.
ORAL JUDGMENT :
1. Heard the learned Counsel for the respective parties by consent.
2. By the First Appeal No.446 of 2010, the appellants have challenged the judgment and award passed on 24.3.2009 in M.A.C.P. ::: Downloaded on - 09/06/2013 16:17:15 ::: 5 No.100 of 2001 and M.A.C.P.No.40 of 2004. The subject matter of the First Appeal No.1441 of 2009 is also the same common judgment and award.
While by First Appeal No.1399 of of 2009, the appellant is challenging the judgment and award dt. 30.3.2009 passed by the M.A.C.T. Pusad in M.A.C.P.No.41 of 2004.
3. The grievance of the learned Counsel for the appellant is that the Motor Accident Claims Tribunal, after it held the owner and driver of the offending motor vehicle liable to pay compensation to the claimants ought not to have directed the appellant/Insurance Co. to satisfy the award at the first instance and thereafter, to recover the amount of compensation paid from the owner and/or driver of the offending motor vehicle concerned with the accident in question.
4. Learned Counsel for the appellant referred to New India Assurance Co. Ltd. vs. Diwakar reported in 2007 ACJ 215 (Bom), in which it was held that the Insurance Co. is not statutorily required to insure passengers traveling in the goods vehicle and is also not liable to pay compensation first to claimant and then recover from the owner as it is the owner of the goods vehicle who alone was liable. Reliance is also placed upon National Insurance Co. vs. Parvathneni and Ors.
reported in 2009 (4) T.A.C. 382 SC in which it was found that there was ::: Downloaded on - 09/06/2013 16:17:15 ::: 6 no valid Insurance coverage on the date of accident in question and furthermore the cheque issued towards premium was also dishonoured.
Under the circumstances, the legality of direction to the Insurer to pay compensation to the claimants and then to recover it from the owner was questioned and in the facts and circumstances, it was held that when the Insurance Co. had no liability, it cannot be compelled by the Court's order to pay first and then recover.
5. Reliance is also placed on the case of Bhuwan .vs. Oriental Insurance Co. reported in (2009) 5 SCC 136. The learned Counsel for the appellant submitted that the Insurance Co. was under no obligation to reimburse the claimants. It is also submitted that the ruling in the case of National Insurance Co. Ltd. vs. Swaran Singh and Ors. reported in (2004) 3 SCC 297 was referred to by two Judges Bench in the case of Bhuwan Singh (supra). In para 21, it is observed that thus :
" In terms of Section 149 of the Act, the Insurance Company would be liable to pay the awarded amount to the claimants provided that the accident is covered by the terms of the policy, although the burden in respect thereof would be on the Insurance Company."::: Downloaded on - 09/06/2013 16:17:15 ::: 7
6. In para 23 thereof, it was further observed thus :
" The question as to whether the appellant was holding a valid license or not was within his knowledge. The driver was to show that he held license in respect of the vehicle for which he has filed an application. Filing of an application and grant thereof would, therefore, are pre- requisite for holding a valid and effective license. As on 5.1.2001 the appellant was not duly licensed as his learner's license expired on 22.12.2000. He filed an application for grant of license much later. The Insurance Company, therefore, in our opinion, was not bound to reimburse him in terms of contract of Insurance. "
7. I have perused the rulings referred to hereinabove, as also three Judges' Bench ruling in the case of National Insurance Co. Ltd. vs. Swaran Singh and Ors. (cited supra). The Apex Court, while recording summary of findings in para 110, appears to have concluded thus :
" Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the Insurer has satisfactorily proved its defence in accordance with the provisions of Section 149 (2) r/w. sub-section (7), as interpreted by this Court above, the Tribunal can direct that the Insurer is liable to reimbursed by the Insured for the ::: Downloaded on - 09/06/2013 16:17:15 ::: 8 compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal."
8. The Apex Court, therefore, appears to have considered the ability of Insurance Co. to recover the amount paid by it to the claimants.
In para 104, the Apex Court recorded its conclusions thus :
"104. It is, therefore, evident from the discussions made hereinbefore that the liability of the Insurance Company to satisfy the decree at the first instance and to recover the awarded amount from the owner or driver thereof has been holding the field for a long time."
105. Apart from the reasons stated hereinbefore, the ::: Downloaded on - 09/06/2013 16:17:15 ::: 9 doctrine of stare decisis persuades us not to deviate from the said principle.
106. It is a well-settled rule of law and should not ordinarily be deviated from.......... "
9. Thus, it is settled legal position that the insurer may be made liable to pay first and can then recover the amount of compensation paid to the claimants from owner or driver as the case may be in accordance with the provisions of the Motor Vehicle Act. There appears no deviation from this principle in the ruling cited before me. Under these circumstances, for the reasons stated above, I do not find any serious infirmity in the impugned judgment and award by which the Tribunal directed the Insurer to pay compensation to the claimants and then to recover it from the owner/driver as the case may be. No serious prejudice has resulted from the impugned award directing the Insurance Company to satisfy the award and then to recover the amount along with amount of no fault liability from the Insured by filing execution proceedings as contemplated under the Act and after obtaining necessary certificate, if necessary, from the Collector concerned to enforce the recovery as arrears of land revenue. Hence, no ground is made out for interference.
The amounts deposited by the Insurer/appellant Company in this Court ::: Downloaded on - 09/06/2013 16:17:15 ::: 10 shall now be sent to the Motor Accident Claims Tribunal so as to adjust the same towards payment in the execution proceedings till the execution of the award. The appeals are disposed of accordingly.
JUDGE jaiswal ::: Downloaded on - 09/06/2013 16:17:15 :::